FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 FEBRUARY 11, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-13584

________________________

D. C. Docket Nos. 96-01249-CV-WJZ,

00-02914-CV-WJZ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

480.00 ACRES OF LAND, 

More or Less, in the County of 

Dade, State of Florida, et al.,

Defendants,

GILBERT R. FORNATORA, 

FRANK PLATTNER, et al.,

Defendants-Appellants.
________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 11, 2009)

Before BIRCH and MARCUS, Circuit Judges, and FORRESTER, District Judge. *

FORRESTER, District Judge:

Appellants appeal the district court’s order confirming and approving a

September 15, 2005 Land Commission Report setting the compensation that the

United States must pay Appellants to take their property by eminent domain. 

Appellants contend that (1) the district court adopted the wrong legal standard to

determine whether the Government improperly used a local zoning ordinance to

prevent development on and reduce the value of their land; (2) the district court

improperly excluded evidence of the Government’s efforts to depress their land

values from being presented to the Land Commission; and (3) the procedures

employed by the Land Commission and the United States in determining their

“just compensation” denied them due process of law. 

For the reasons set forth below, we AFFIRM the district court’s order

awarding compensation and hold that (1) in order for a fact finding body to ignore

Honorable J. Owen Forrester, Senior United States District Judge for the Northern District *

of Georgia, sitting by designation.

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a regulation in calculating “just compensation” for a given piece of property, the

landowner must show that the primary purpose of the regulation was to depress

the property value of land or that the ordinance was enacted with the specific

intent of depressing property value for the purpose of later condemnation; (2) once

the district court determines that a regulation or ordinance was not improperly

used to prevent development and reduce value, there is no reason to present

evidence of such allegations of improper use to a Commission charged with

determining “just compensation”; and (3) no actual bias was present in the

Commission report filed on September 15, 2005, and the individual landowners’

rights were preserved. 

I. Background

The instant appeal involves seven regulated, vacant, and unimproved tracts

of wetlands in Dade County, Florida suitable for passive recreational use. The

Appellants acquired the tracts in the 1950s and 1960s. 

A. The History of Regulation on These Properties 

In 1971 South Florida experienced a water crisis, and the citizens of Dade

County (“the County”) became increasingly concerned about development in the

Everglades and its impact upon the County’s demand for water. Therefore, in

1975 the County designated a large area of land, including Appellants’ acreage, as

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an “Area of Critical Environmental Concern” and developed a Comprehensive

Development Master Plan which restricted development to one dwelling per five

acres. During this time, the National Park Service also became concerned about

development in the area east of the Everglades National Park. This property

contained watershed area that the Park Service believed, from an ecological

perspective, should have been included in the original park boundaries.

The Park Service suggested that the County revisit its Comprehensive

Development Master Plan for the area. A federally initiated and funded study

process known as the East Everglades Resource Planning Project (EERP) began. 

EERP sought to recommend a management plan to Dade County. Dade County

sought to use the EERP to address its local water supply and control concerns. 

Although the EERP studies concluded that the existing one-dwelling-per-five-acre

density under the 1975 Plan adequately addressed the County’s water concerns,

the EERP recommended one dwelling per forty acres with no agriculture allowed. 

The County adopted the more stringent one-per-forty standard when it passed the

1981 East Everglades Zoning Overlay, later added to Chapter 33B of the County

Code. 

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B. Condemnation

In 1989, Congress authorized the expansion of the boundaries of Everglades

National Park to include most of the area known as the East Everglades and the

Appellants’ acreage. 16 U.S.C. §§ 410r-5, et seq. Congress did not provide any

funding for the private land acquisition necessary for expansion until 1992, and

the expansion was not fully funded until 1999. Armed with sufficient funding, the

U.S. Department of the Interior filed 2,700 condemnation cases in the U.S. District

Court for the Southern District of Florida beginning in 2000. Given the large

amount of land and the large number of land owners involved, the district court

appointed a land commission (“the Commission”) pursuant to Fed. R. Civ. P.

71.1(h) to determine the just compensation due to each landowner as part of the

East Everglades Acquisition Project. 

The district court issued instructions to the commissioners, and the parties

were given the opportunity to object. (R-5). These instructions outlined the

relevant rules of law and procedure necessary for the Commission to make a

determination of fair compensation as a fact finding body similar to a jury.

Instructions 5, 16, 19, and 21 are particularly relevant to this case. The last

portion of Instruction 5 states, “It is proper to look to state law to determine the

existence of land use or other restrictions on the uses to which the property may be

5
devoted, because any such restrictions on the lawful uses of the property limit the

uses available for consideration as highest and best use.” (Id. ¶ 5). Instruction 16

addressing “Highest and Best Use,” states in part:

Any proposed highest and best use must be a legally permissible use. 

Where the use of the property is restricted by the requirement of a

permit or license or by any other land use restriction it must be shown

that there is a reasonable probability that such permit or license will

be issued or that a re-zoning will occur to make the use legal.

(Id. ¶ 16). Paragraph 19 is entitled, “Reasonable Probability,” and it reiterates that

legal restrictions on the use of the property must be considered in determining its

highest and best use. “If, at the time of the taking, the property was subject to

zoning restrictions, license regulations, or other land use restrictions those factors

must be considered in evaluating the property . . . .” (Id. ¶ 19). Paragraph 21

entitled, “Value to the Government” states:

You are not to consider the value of the property to the Government,

nor may you consider when valuing the property before the taking,

any increase or increment of value by virtue of the activities of the

Government with reference to the project for which the property is

being acquired.

(Id. ¶ 21). 

In the fall of 2000, several landowners filed objections to the district court’s

instructions. (R-6). Appellants objected generally to the Commission being

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allowed to consider current zoning restrictions on the use of their properties

resulting from the Counties’ 1981 East Everglades Zoning Overlay. Appellants

contended that the United States Department of Interior improperly influenced the

County to pass the Overlay in order to make its subsequent condemnation of the

East Everglades easier and less costly. Specifically, Appellants objected to

Instructions 19 and 21.1

 In its Order addressing the objections, the district court agreed with

Appellants that “the government ‘may not misuse its zoning powers to reduce the

expense of a subsequent condemnation.’” (R-6, at 9). The district court

considered two issues: “(1) What is the necessary proof that the purpose of the

restriction was a ‘tool’ to depress the value of the land? and (2) Whether the rule

applies when the governmental body that imposed the restriction differs from the

one that condemns the property?” As to question one, she found that some courts

require that the “sole purpose” of the regulation be to depress property values; see

United States v. Meadow Brook Club, 259 F.2d 41, 45 (2d Cir. 1958); other courts

require that the “primary purpose” or “real purpose” be to depress property values

to minimize the cost of acquisition; see Dep’t Public Works and Buildings v.

Appellants also objected to Instructions 5, 15, 16, 22, and 26, but these objections need not 1

be addressed in this appeal. 

7
Exchange National Bank, 334 N.E. 2d. 810, 819 (Ill. App. 1975); while a third set

of courts requires only that the governmental body “intentionally” or

“deliberately” manipulate zoning to depress the value of the property being

condemned; see City of Bellevue v. Kravik, 850 P.2d 559, 562 (Wash. App. 1993). 

From these cases, she articulated the following standard: “the landowner must

show that the primary purpose of the regulation was to depress the property value

or that the ordinance was enacted with the specific intent of depressing the

property values for the purpose of condemnation.” (R-6, at 11). With respect to

the second inquiry, she examined the holdings in California v. Southern Pacific

Transportation Co., 109 Cal. Rptr. 525 (Cal. App. 1973), and Assateague Island

Condemnation Opinion No. 3, 324 F. Supp. 1170 (D. Md. 1971), and stated:

The Land Commissioners may disregard zoning restrictions

improperly imposed by the State of Florida or Dade County only if

there is evidence that the United States either directly or indirectly

depressed property values. If the State of Florida or Dade County

previously imposed a zoning restriction on the land at issue

independently of -- i.e., “neither taken in concert nor by agreement

with” -- the United States, even if such restriction was imposed

explicitly and uncontrovertedly to aid the State or County to condemn

the property at depressed value, the zoning restriction must be

considered in accordance with the other instructions. 

(Id., at 15). She stated that the court was aware of no evidence in the record that

would meet either the intent or primary purpose standard and held “unless and

8
until evidence is presented that this will be an issue at trial, there is no need to

modify [Instruction 19]. If this becomes an issue at trial, the court will amend the

instructions.” (Id.). She agreed to modify Instruction 21.2

C. Two Years of Pretrial Proceedings in Magistrate Court

 Appellants’ seven properties were consolidated for trial and a trial was set

for December 2001. (R-7, R-8). Numerous pretrial proceedings pushed the trial

3

date back from December 2001. In September 2001, Appellants again moved to

amend the instructions related to Instruction 19 and for an evidentiary hearing on

his motion. (R-9). The Government opposed the motion and argued for a motion

in limine ruling that the 1981 Zoning Overlay should be considered in the

proceeding and barring re-litigation of the matter. The district court temporarily

denied Fornatora’s motion and instructed the parties to submit all evidence and to

brief (1) whether the zoning regulation was enacted with the primary purpose or

Instruction 21 then read: “Scope of Project: You are not to consider the value of the 2

property to the Government nor may you consider when valuing the property before the taking, any

increase or decrease in value by virtue of activities of the Government with reference to the project

for which the property is acquired.

It is important to note the numerous judicial changes throughout the course of this case. It

3

appears that Judge Lenore Nesbitt had the case through most of its early stages, although Judge K.M.

Moore signed numerous orders as well. The case was transferred to Judge William Zloch in October

2001. Judge Zloch referred the case to Magistrate Judge Andrea Simonton in November 2001. The

case appears to have been taken out of Judge Simonton’s hands in January 2003 and assigned to

Magistrate Judge Robert Dube; he and Judge Zloch had the case until the appeal.

9
specifically intended to depress the value of property for later condemnation; and

(2) whether the Government acted in concert or agreement with the agency that

actually imposed the zoning ordinance depressing property values in anticipation

of condemnation, so that the court could determine whether an evidentiary hearing

was needed. (Id.). Magistrate Judge Moore issued an order explaining the

mechanics of presenting these issues and in doing so stated:

Whether to provide the instruction [on the federal government’s

influence over county zoning ordinance] and the language of the

instruction is a matter for the Court to decide; what impact that this

evidence has on the amount of just compensation is a matter for the

Commissioners to decide. If either party believes that there is

insufficient evidence on the improper zoning issue to preclude

presentation to the Commissioners, then that party should file the

appropriate motion to exclude certain evidence . . . [and] have the

Court render a decision as a matter of law on this issue.

(R-15, at 5). Pretrial disputes on these issues lasted for more than two years

before the Magistrate Judge. 

On August 4, 2004, the Magistrate Judge issued a Report and

Recommendation addressing “whether the Land Commission should be instructed

that the zoning restrictions (the 1981 East Everglades Zoning Overlay and related

ordinances) imposed by Miami-Dade County . . . should be disregarded in

determining the value of the subject parcels based on the application of the ‘scope

of the project’ doctrine.” (R-14). The court extensively reviewed information

10
surrounding the passage of the 1981 Zoning Ordinance, going back to the early

1970s. The Government introduced a 1978 resolution adopted by the Dade

County Board of Commissioners entitled, “Resolution Approving the Plan of

Study for the East Everglades Land/Water Resources Management Plan; and

Authorizing County Manager to Apply for and Enter into a Federal Grant and

Seek State and Water Management District Funding to Assist in the Preparation of

said Plan,” the 1975 Comprehensive Plan designating a major portion of the East

Everglades as an “Area of Critical Environmental Concern pursuant to Chapter

33B, Code of Metropolitan Dade County,” the Proposed Management Plan, and

the 1981 Overlay Ordinance itself. Appellants were allowed to present the

following evidence which they contended supported the Government’s

involvement in the passing of the Overlay.

(1) A March 1974 Letter from the Asst. Secretary of the Interior to the Attorney

General of Florida and the Dade County Manager which discusses concerns

about future development and stated:

We are concerned about the extensive future development of the

Taylor Slough area and all the drainage areas to the eastern portion of

Everglades National Park, which the construction of this road

portends. We assume you share our concern in this respect. 

However, rather than allowing such extensive future development to

occur and create a danger to Park resources, which would necessitate

numerous and piecemeal legal confrontations, a preferable solution to

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these problems is a cooperative Federal-State effort to take the

initiative by asserting the legal authorities at our disposal and

controlling development in these areas prior to the necessity for

litigation. Such a solution would most effectively protect all the

interests concerned, i.e., the Everglades, the State’s downstream

resources, and the affected landowners.

(2) A June 1974 letter from the Superintendent of Everglades National Park to

the Dade County Mayor and Commission urging the preservation of the

East Everglades through an extension of the moratorium and an adoption of

proper land use regulations and encouraging “strong, joint, County, State

and Federal action.”

(3) Federally funded studies in the mid-1970s and statements made by a

Department of Interior official in 1976. The official talks about the

possibility of taking lands in the East Everglades, the expense of doing so,

and other possible solutions involving state and county governments. These

federal studies recognize that Dade County might allow more intensive uses

of the East Everglades than would be acceptable for Park management

purposes and suggest, “the Department of the Interior must be prepared to

take additional actions, up to and including purchase in order to protect [its]

interest.”

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(4) Documents suggesting that the one-dwelling-per-forty-acres restriction was

not based on the County’s research but was a restriction recommended by

the Government as the maximum restriction allowed to avoid a regulatory

taking.

(5) Documents indicating a long history of the federal officials providing

comments on projects proposed for adjacent or related lands and noting the

Government’s participation in the East Everglades Resources Planning

Project.

(Id., at 12-18). 

The Magistrate Judge found:

In the present case, the evidence presented to this Court, as

extensively set out above, fails to show that the primary purpose of

the Zoning Overlay Ordinance was to depress the property values of

the subject parcels or that it was enacted with the specific intent of

depressing property values for condemnation purposes. The evidence

instead shows that the purpose and intent of the regulations was for

the ecological reasons set out in the Ordinance itself. The evidence

presented by the Defendants completely fails to satisfy the

requirements imposed by [the original Judge district court order] that

the movant show that reducing property value was the intent and

purpose of the Ordinance. Thus, no relief on this basis is warranted.

Additionally, even if the evidence could somehow be seen to allow

for the determination that the purpose and intent had been shown,

there is clearly insufficient evidence to show that the United States

acted in concert or agreement to depress the property values. All the

evidence presented to this Court shows is that the federal government

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shared the concerns expressed by the state and local governments in

ensuring the continued vitality of the natural resources of South

Florida.

(R-14, at 25). The Report and Recommendation recommended that Appellants’

Instruction 19 motion be denied and the Government’s motion in limine be

granted and that all related motions be denied with prejudice. Appellants objected

to the Report and Recommendation, but on November 8, 2004, the district court

conducted a de novo review and adopted it. (R-15). 

D. The Trial and Commission Report

The parties proceeded to trial on August 16-18, 2005, before the Rule 71

Land Commission to determine just compensation for Appellants’ seven tracts. 

Appellants contended that the value of their six small tracts was $1,500 and the

value of their large tract was $2,000 per acre, while the Government contended

that the values were $500 and $850 per acre, respectively. Appellants presented

two witnesses along with their own testimony. A certified appraiser testified as to

the fair market value of the seven parcels, while a planner and land use expert

provided testimony on permissible uses of the land of the subject properties and

the properties the appraiser used as comparables. The Government presented the

testimony of another certified appraiser; the owner of Alligator Farms, Inc., and

the purchaser of a number of the Government appraiser’s comparables; a

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hydrologist with the Everglades National Park; and an employee of the South

Florida Water Management District. The appraisers agreed that the highest and

best use for the seven tracts was passive recreational use and that the comparable

sales approach was the best method to determine value. The two experts differed

in their comparables.

Appellants’ appraiser used sixteen comparables, ranging in value from

$1,196 to $3,000 an acre. Two of the sixteen comparables were within the

relevant land areas, while the other fourteen were outside the relevant land areas

twenty or more miles south in areas that, while environmentally sensitive, were not

as limited by zoning restrictions. Seven of the comparables involved sales to the

Everglades Alligator Farm. The owner testified that he only paid the price he paid

for these parcels because they were within the vicinity of his business and

necessary to secure air boat trails for his tourist attractions. Three of the

comparables had the potential for agricultural use and one of his comparables had

value as a mining property. Appellants’ property was suitable for neither mining

nor agriculture. 

The Government’s appraiser used seven comparables ranging in value from

$200 to $2,083 an acre. Only two of his comparables were sold within the past

fifteen years, and those properties were distress sales which offered little insight. 

15
One of his other comparables was a bank foreclosure. The Government

appraiser’s $2,083 per acre property was in a less restrictive area, had road access,

and had a structure built upon it. The Government appraiser also included

comparable #6, a 1982 sale of eighty acres for $500 per acre, and comparable #1, a

1986 sale of 137 acres for $700 per acre. Appellants offered a 1987 comparable

for $1,050 on cross-examination of the Government’s expert to challenge his 1986

comparable. Appellants did not offer this comparable in their case in chief

because they believed it to be too old.

The Commission issued its report on September 15, 2005. (R-16). The land

commission determined Appellants had not established that their properties should

be valued at $1,500 and $2,000 an acre, respectively, but they had established that

their value was more than the $500 and $800 an acre values the Government put

forth. The Commission assessed all twenty-three comparables presented by the

appraisers in their direct testimony. The Commission found that while properties

discussed by Appellants’ appraiser provided insight into the value of Appellants’

land, none of properties were actually comparable. The Commission found that

only comparable #1, the 1982 sale for $500 an acre, and comparable #6, the 1986

sale for $700 an acre, offered by the Government were actually analogous to

Appellants’ properties. The Commission did not address the 1987 comparable. 

16
The Commission set just compensation for Appellants’ six smaller properties at

$700 per acre and the proper value for the seventh and largest property at $900 per

acre. The total value of Appellants’ acreage was $472,000.. In accordance with

the district court’s pretrial ruling, the Commission did not hear any of the

Appellants’ evidence regarding the Government’s involvement in the 1981

Overlay or the value of the lands without the Overlay restrictions.

E. Proceedings Following the Commission’s Report

Relevant to this appeal, Appellants raised three objections to the

Commission’s report and claimed that these objections constituted independent

grounds for the district court to conduct a de novo trial on the issue of just

compensation or remand the report for a new trial before a newly-appointed

commission. First, they contended that the district court had used the wrong

standard to determine whether the Government had acted to depress land value. 

Second, they contended that the district court should have amended the

instructions to the Commissioners relating to the 1981 East Everglades Zoning

Overlay. The court found that these two objections regarding the 1981 Zoning

Overlay had already been addressed and rejected in an earlier Report and

Recommendation. Lastly, Appellants argued that the trial proceeding before the

Land Commission violated Due Process. 

17
According to the Appellants, the Government had been scheduling trial

groups “in which either no landowners or landowner attorneys appeared or in

which landowners appeared pro se, without assistance of counsel and without

producing expert valuation testimony.” Appellants argued:

By voluntarily dismissing parcels for which an attorney filed a notice

of appearance in the early trial groups, the government achieved for

itself the practical equivalent of ex parte hearings. The [Government]

could present its appraisers without cross-examination or without

competing expert testimony. It could advise the Commission on

points of law with no opposing legal argument or input from the

Court.

(R-17, at 9). Appellants ultimately concluded that by the time their case went to

trial, a clear patten of compensation rulings had emerged and the Commission had

their minds entirely made up. First, Appellants noted that the Commission

consistently valued isolated tracts in Management Area 2A of the Everglades at

$500 per acre in adherence with the Government expert’s opinion, but the

Commission would bump the value up to $700 for no apparent reason when a

landowner appeared pro se. Second, the Commission did not give any weight to

the 1987 comparable sale for $1,050 per acre highlighted by the Appellants during

the cross-examination of the Government’s appraiser, direct of Appellants’

appraiser, and Appellants’ closing, despite the fact that the 1987 sale was in the

vicinity of the 1986 comparable on which the Commission relied and was a year

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closer to the date of valuation. Appellants differentiated their case from United

States v. 5.00 Acres, 673 F.2d 1244, 1247 (11th Cir. 1982), which rejected an

argument that a Commission was biased because it had heard thirty-nine

uncontested cases. Appellants instead compared their case to Gwathmey v. United

States, 215 F.2d 148 (5th Cir. 1954) (reversed and remanded for a new trial due to

owners being denied due process after Government condemned 236 tracts and

presented all evidence before one jury). 

The Magistrate Judge issued a Report and Recommendation recommending

Appellants’ objections be rejected. (R-17). The Magistrate Judge found that (1)

Gwathmey was distinguishable and did not control the matter, and (2) “the

Commission examined the comparables presented, including the [comparable

referenced by Appellants] and noted in detail their reasoning for accepting and

rejecting each comparable. The Commission’s refusal to consider Appellant’s

appraiser comparables was reasonable, and the [Appellants] have failed to show

any basis for rejecting the Report of the Commission on grounds of bias or

depravation of due process.” Appellants moved vacate the Magistrate Judge’s

Report and Recommendation. The district court vacated the Report and

Recommendation, reviewed the matter de novo, rejected Appellants’ arguments,

19
and then adopted the Commission’s findings on compensation. Appellants

appealed to this court. (R-18). 

II. Discussion

The beginning of the inquiry in any condemnation matter is the Fifth

Amendment which states that “[n]o person . . . shall be deprived of . . . property

without due process of law; nor shall private property be taken for public use,

without just compensation.” U.S. Const. amend. V. In addition to the

considerable due process jurisprudence, courts have developed a number of legal

working rules to determine when compensation is “just.” First, the measure of

compensation is generally the value of the property at the date of taking. United

States v. 320 Acres, 605 F.2d 762, 781 (5th Cir. 1979). The value of a property is 4

generally its “market value” or the price that a reasonable and willing buyer would

pay a reasonable and willing seller given market conditions. Id. Just

compensation is not limited to the value of the property as it is presently used but

also includes any additional market value it may command because of the

prospects for developing it to the “highest and best use” for which it is suitable. 

Id. In determining a property’s “highest and best” use, a court may consider

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh

4

Circuit adopted as binding precedent all decisions rendered by the former Fifth Circuit prior to

October 1, 1981.

20
existing zoning restrictions; if a zoning restriction precludes a certain use, the

court will generally not consider that use in its evaluation. Id. (quoting United

States v. Meadow Brook Club, 259 F.2d 41, 45 (2d Cir.), cert denied, 358 U.S. 921

(1958)). In determining what a hypothetical willing buyer would give for

property, courts often look to actual, comparable sales on the open market between

other willing buyers and sellers. Id. at 781 n.23. “Generally, the more comparable

a sale is, the more probative it will be of the fair market value of the condemned

property.” Id. at 798. “Sound and just trial practice is to admit as many of the

‘most comparable’ sales available as is necessary to fairly permit each side to

present its argument of fair market value for the jury’s consideration.” Id. 

In some cases strict adherence to market value and comparable sales will

result in manifest injustice to the owner or to the public, and courts must apply

special rules and standards to arrive at “just” compensation. One such rule is the

“scope of the project” doctrine. This doctrine seeks to ensure that when deciding

the market value of the property the fact-finding body does not consider the

positive or the negative impact of any decision the Government makes within the

scope of the project which prompted the taking. As a part of this doctrine, a fact

finder may disregard the impact of a zoning restriction on a piece of property in

determining just compensation when the Government passed the restriction for the

21
purpose of depressing the property’s value in an impending eminent domain

proceeding. United States v. 320 Acres, 605 F.2d at 820 n.131 (citing

Metropolitan Area Transit Authority v. One Parcel of Land, 413 F. Supp. 102, 106

(D. Md. 1976), aff’d, 548 F.2d 1130 (4th Cir. 1977)). 

The instant matter requires us to address the appropriate legal standard in

this circuit for determining when the Government has passed a restriction for the

purpose of depressing a property’s value in an impending eminent domain

proceeding and when a court should give an instruction to the fact finder regarding

such restrictions, as well as the appropriate process to be given land owners during

a condemnation proceeding. 

A. The Correct Legal Standard to Determine When a Zoning Restriction

or Regulation Should Be Ignored Because the Government Acted to

Depress Property Value in Anticipation of Condemnation

The Eleventh Circuit has never addressed the appropriate standard for

determining whether the Government has implemented a restriction in order to

depress value preceding a taking by eminent domain. We must decide whether to

affirm the district court and adopt the “primary purpose” or “intent” standard

supported in part by the Second, Third, and Fifth Circuits, see United States v.

Land, 213 F.3d 830 (5th Cir. 2000); United States v. 27.93 Acres of Land, 924

F.2d 506 (3d Cir. 1991); United States v. Meadow Brook Club, 259 F.2d 41 (2d

22
Cir. 1958), adopt the broader “nexus” standard advocated by Appellants, or adopt

a unique standard. This issue is a matter of law which we review de novo.

Southern Natural Gas v. Land, Cullman County, 197 F.3d 1368, 1372 (11th Cir.

1999).

The district court’s standard consists of two parts – (1) “a landowner must

show that the primary purpose of the regulation was to depress the property value

or that the ordinance was enacted with the specific intent of depressing property

values for the purpose of condemnation,” and (2) the landowner must show that

the government body imposing the regulation is either the same government body

involved in the condemnation or has acted “in concert [or] agreement with” that

entity (R-6 at 11, 14). Appellants dispute the intent or primary purpose

requirement.

An analysis of the primary purpose or intent standard begins with Meadow

Brook. 259 F.2d 41. There, a landowner sought to have the Town Board re-zone

its property from residential to industrial. Id. at 44. Despite the fact that the area

surrounding the property had become largely industrial, the Air Force, as an

adjoining landowner, objected to the re-zoning. Id. Shortly thereafter, the

Government moved to condemn the landowner’s property to expand the Air Force

base. Id. at 43. The landowner contended that the Air Force had acted in bad faith

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in opposing re-zoning in order to lower the value of the property prior to

condemnation, and absent the Air Force’s intervention rezoning would have

occurred. Id. at 45. The court rejected the landowner’s argument applying a

“motive test.” The Second Circuit stated:

Clearly, the United States, like any adjoining landowner, was a proper

party to resist re-zoning . . . . If the air force had a proper motive, this

well might have precluded re-zoning at any time [and therefore an

increase in the property’s value] . . . . But it is also clear that if the

government’s sole motive in resisting the change in zoning was to

depress the market value of the property which it then intended to

condemn, the court’s estimate of the probability of re-zoning (as a

factor entering into the ultimate calculation of value) should not have

reflected this opposition.

Id. The Second Circuit found that there was not sufficient evidence in the record

to support Meadow Brook’s charge of bad faith and affirmed the district court’s

decision to consider the existing zoning of the property and the unlikelihood that it

would change in determining the property’s market value. Id. at 46. 

The Fifth Circuit recently adopted Meadow Brook’s standard in Land. 213

F.3d 830. There, the Fifth Circuit decided that the Army Corps of Engineers’

1979 decision to deny a development corporation’s construction permit to build a

levee was not within the scope of the National Park System’s ultimate acquisition

and condemnation of land for Jean Lafitte National Park. Id. at. 835-36. Congress

created the park in 1978; its plans to acquire land begin in 1986; and the

24
Government did not file condemnation complaints until 1994. Id. The court

found that there was no evidence that the Corps’ motive in denying the land

developer’s permit application was to drive down the value of the property, and

instead the record indicated that the Corps’ primary purpose was to protect the

Jean Lafitte National Park’s ecosystem. Id. at 836. As such, the court found that

compensation for the levee land should be based on its value at the time of

condemnation rather than the value it might have had if the Corps had granted the

1975 construction permit. Id.

The Third Circuit adopted Meadow Brook in 27.93 Acres. 924 F.2d 506. 

There, the Government contacted landowners to acquire their property, zoned

agricultural, for the Appalachian National Scenic Trial. Id. at 508-11. The parties

could not reach a settlement and the Government ultimately filed a condemnation

proceeding. Id. Prior to the condemnation proceeding, the Township in which the

land was located began contemplating an enterprise district which would require

that the landowner’s property be re-zoned as commercial. Id. While in discovery

with the Government, the landowners filed an application to have their property

re-zoned with the Township planning board and it was tentatively approved. Id.

The Government agreed to postpone trial and take discovery on the commercial

value of the property. Prior to the close of discovery, the Planning Commission

25
recommended to the Township that the landowners’ petition be denied, offering

four reasons. Id. The landowners later learned that the Government had sent a

letter to the Township Board stating that it opposed the re-zoning request. Id. The

board ultimately denied their petition. Id. At trial, the district court did not allow

the landowners to present evidence of the commercial value of the property. Id.

The landowners appealed to the Third Circuit arguing that the district court’s

discovery rulings preventing them from offering evidence at trial on the

Government’s motives in opposing re-zoning and the commercial value of the land

were improper under Meadow Brook. Id. at 511. 

The Third Circuit reviewed for abuse of discretion and affirmed the trial

court finding that despite the fact that the landowners had deposed the author of

the letter to the Board and taken other discovery, they offered no more than

conclusory allegations regarding motive. Id. The court found that the landowners

had not shown by a preponderance of the evidence that the Government’s actions

were the “but for” cause of the Board’s removal of the condemned tract from the

enterprise district and the decision not to re-zone, and thus the district court acted

appropriately in not submitting to the jury the question of whether the condemned

tract would likely be re-zoned commercial. Id. at 814. 

26
Appellants urge us to ignore the intent or motive holdings of our sister

circuits and instead to adopt a standard under which a landowner must only show a

“nexus” between the Government’s project-related activities and the local zoning

which caused depreciation in value. Appellants draw this standard from United

States v. Truro, 476 F. Supp. 1031 (D. Mass. 1979), and Assateague Island

Condemnation Opinion No. 3, 324 F. Supp. 1170 (D. Md. 1971). In Truro,

“Congress motivated, and, as a practical matter, pressured” six towns to enact

zoning provisions which Congress wanted to preserve “the Cape Cod way of life

without risk of further development or of uses inconsistent” with Congress’s plan

to establish a national seashore there. Id. at 1033-34. After the zoning provisions

5

were in place, Congress condemned properties within the six towns for a national

seashore. Id. at 1034. The owners of the zoned and condemned tracts sought to

have the “zoning bylaw set aside for the limited purpose of determining the fair

market value of their land and [sought] to have the fair market value of their land

determined pursuant to what the zoning provision would have been in the absence

The Department of the Interior provided officials in the affected towns with copies of 5

suggested minimum zoning requirements. The Secretary of the Interior drafted legislation so that

all zoning ordinances passed by the towns would have to be approved by him. The town planning

boards understood “that a bylaw providing for anything less than [the zoning restrictions that the

Department of Interior wanted] would not be approved by the Secretary and that they must either

adopt [these regulations] or live with the risk of condemnation” by the Government. Truro, 476

F. Supp. at 1034.

27
of federal intervention.” Id. at 1035. The court found that the new zoning bylaws

were “in large part motivated, induced and implemented by agents of the United

States,” the town’s adoption of the zoning provisions “was an integral part of the

federal design,” and the “federal government should not be allowed to profit from

the decreased property values which [those] bylaws effected.” Id. The court

distinguished the Truro situation from other instances in which there was no

connection between the taking authority and the applicable zoning regulation. The

court held that “the federal government [could not] disavow the nexus which

existed between its actions and the adoption of the Truro zoning provision,” that it

was “clear both from the statutory language and the evidence presented at the

hearing that Congress made an offer which Truro realistically could not refuse,”

and to “characterize the enactment of the [zoning bylaws] as the totally free act of

the Truro citizenry at town meeting would be to shut one’s eyes and ears to what

really went on.” Id. The court allowed the affected landowners to introduce

evidence of less restrictive town zoning on similar lands outside the proposed

national park boundary to establish value. Id. at 1036. The court found that the

fluctuations in market price attributable to the zoning restrictions were attributable

to the project itself, and like any depreciation or appreciation in value due to the

impending project, such fluctuations should be excluded in determining value. Id.

28
Although Truro uses the word “nexus” and never explicitly requires proof

of motive or intent, it does not appear to trumpet the broad standard which

Appellants advocate. The actions of the Secretary of the Interior were so overt

that they arguably evidenced intent and primary purpose. Further, it is clear that

the Township was working “in concert” with the Secretary when it passed the

zoning restrictions, and the strong arm tactics of the Secretary imply that “but for”

the Secretary, the Township would not have passed the restrictions it did. Thus,

the facts of Truro actually seem to support the standard articulated by the district

court.

Assateague Island also addressed a national seashore project. 324 F. Supp.

1170. There, Worcester County enacted a moratorium on building permits and

restricted sewage disposal permits on Assateague Island at the urging of the

Department of Interior to slow development until Congress could consider the

development of a national seashore there. Id. at 1175-76. Both the moratorium

and the sewage permit process were struck down by Maryland courts before the

United States ultimately decided to develop a national seashore and sought to take

land on Assateague Island by eminent domain. Id. at 1177. The landowners

argued that the moratorium on building permits and the difficulty in obtaining

sewage disposal permits decreased the value of their land. They wished to

29
introduce evidence of land sales in other nearby communities not subject to these

restrictions. Id. at 1171-72. The court considered sales in other areas not subject

to the restrictions. The landowners were not required to show that the Department

of Interior’s sole motive or purpose in encouraging the restrictions was to depress

land value. Id. at 1180-81. Further, the court considered the activities of the

Government in setting compensation. Id.

Unlike the instant case, Assateague Island did not involve a zoning

restriction which landowners asked a court to disregard; both of the restrictions at

issue were struck down by state courts prior to the Government’s eminent domain

action. The Assateague Island court was never faced with the question of the

appropriate standard to set aside a zoning restriction; rather, it merely had to

consider whether land sales under the restrictions could be used as comparables. 

Further, in Assateague Island there was direct evidence that the Government’s

primary purpose was to depress property values. Thus, we find Assateague Island 6

to be an inappropriate case from which to draw a standard.

“The Secretary of the Interior asked the State to defer the building of a bridge ‘until 6

Congress has had an opportunity to evaluate the legislative proposals that will soon be placed before

it to create a National Seashore’ because otherwise the bridge will ‘result in a monetary windfall to

present property owners’ and delaying construction would ‘avoid unnecessary inflation and

speculation in land values.’” (Appellee Brief, at 18). 

30
Appellants’ primary argument for a “nexus standard” is their concern that a

primary purpose or intent standard gives the Government a strong incentive to

mask its real purpose in passing zoning restrictions behind pretextual assertions of

benign purpose. It is very unlikely that the Government would ever admit that its

primary purpose or motive in passing an ordinance or regulation was to depress

value in anticipation of condemnation. According to Appellants, the Government

will be able to benefit by depressing land values as long as they also have any

other purpose for zoning regulations which would only happen in rare cases. 

Courts will have to engage in an intense, fact based, exploration of personal

correspondence and similar evidence to determine “intent” and “primary purpose”

to prohibit such conduct.

Appellants’ concerns are valid; however, the “scope of the project” rule is a

narrow exception from the general rule that regulations are to be considered in

determining a project’s “highest and best use.” Courts have only applied

exceptions to a general takings doctrine when it is necessary to do so in order to

protect the rights of both the taking body and the landowner. Bad faith by

regulating government entities should be the exception, not the rule. A “mere

nexus” rule also endangers the Government’s right as a landowner to play a role in

31
zoning and land use decisions. As such, we adopt the standard applied by the

7

district court and find that in order to have a zoning restriction excluded from a

calculation of a property’s value, a landowner must show that the primary purpose

of the regulation was to depress the property value of land or that the ordinance

was enacted with the specific intent of depressing property value for the purpose

of later condemnation

B. Whether a Given Restriction Was Passed for the Primary Purpose of

Depressing Property Value is a Matter of Law to Be Decided by the

District Court

Appellants contend that the magistrate and district courts erred when they

excluded evidence of the nexus between the Government and the local zoning

board from the Commission. Appellants use our discussion in 320 Acres to argue

that the district court should have tested the sufficiency of Appellants’ evidence

about the nexus between the Government and the 1981 Overlay, found Appellants’

evidence to be sufficient, and submitted the issue to the jury to determine whether

the Government interfered in local zoning matters to depress the value of the land

There is also a considerable question of fact whether Appellants could even prove a “nexus” 7

if the court were to adopt this standard. It appears that the Government was merely interested in

advancing the same environmental goals as the state. The Zoning Overlaywas passed in 1981, more

than eight years before Congress expanded the park, more than eleven years before funding was

appropriated, and almost twenty years before the property in question was condemned. Such a

timetable weighs against a nexus. There does not seem to be anything in the record as overt as the

threat-like legislation in Truro.

32
in the area east of Everglades National Park. Appellants misunderstand 320 Acres

and the respective roles of the Commission and the trial judge in a condemnation

proceeding. 

A court in its discretion may order that the issue of “just compensation” in a

condemnation proceeding be determined by a commission of three persons

appointed by the court rather than a jury. Fed. R. Civ. P. 71.1(h); United States v.

Reynolds, 397 U.S. 14, 19 (1970). A district judge has a much broader role in a

condemnation proceeding than he does in a conventional jury trial, and except for

the single issue of the amount of just compensation, the trial judge decides all

issues, legal and factual, arising in a federal condemnation proceeding. Id. at 19-

20.

Our very lengthy opinion in 320 Acres supports the district court’s actions

here. 605 F.2d 762. 320 Acres discusses the role of the judge and the fact finder

in two contexts: (1) the “scope of the project rule” and (2) the “highest and best

use.” As discussed above, the “scope of the project” rule is designed to ensure

that the landowner is neither hurt nor helped in a takings valuation by any action

done by the Government within the scope of the project leading to the taking.8

For example, if the Government announces that it will establish a park on parcel A, then files 8

an action to take parcel B adjacent to parcel A, the Government should not have to pay for the

increased value to parcel A following the Government’s park announcement. Likewise, if the

Government announces that it will establish a landfill on parcel A, the Government should pay the

33
The “highest and best use” rule ensures that “just compensation” takes into

account all the possible and probable uses for a property, not just the use to which

the current owner is putting it. A use is not possible and probable if it is

prohibited by a zoning regulation that is not likely to change. 

In discussing the roles of the judge and the fact finder in the context of “best

and highest use,” we stated:

[I]n screening proffered potential uses to ascertain whether there is

sufficient evidence of their practicability and probability to warrant

submission to the trier of fact, the judge must take into account any

regulatory restrictions applicable to the property and the proposed

use. And if the judge finds that the regulations preclude the proffered

use, he must under Rule 71A(h) exclude evidence of that use from the

just compensation determination. . . . A legal restriction either

applies to the proposed use or it does not – and that is a quintessential

question of law for the judge to decide. . . . [However], if the

landowner can demonstrate a “reasonable possibility” that a permit

would be issued or that re-zoning will occur, thereby freeing the

property for a use which otherwise would be precluded by regulatory

restrictions, the owner is entitled to have that ‘reasonable possibility’

considered by the jury, provided of course that the use is otherwise a

practicable and reasonably probable one.

In discussing the distinction in the context of the “scope of the project” rule, we

found:

In sum, the judge decides (a) whether the evidence warrants

application of the [scope of the project] rule, (b) how the rule should

be applied – i.e., whether or not any change in value attributable to

owner of parcel B the amount it was worth before the Government announced the landfill.

34
the project should be included or disregarded, and (c) where

appropriate, the date after which any change in value should be

disregarded. But whether there in fact has been any increase or

decrease in value due to the project, and by how much, is ultimately

for the jury (or commission) to decide as part of its just compensation

determination on the basis of the evidence presented it.

Read in conjunction with each other, these discussions make clear that it is for the

judge, and not the jury or Commission, to decide Appellants’ scope of the project

type argument that zoning restrictions passed at the behest of the Government in

order to lower property value should be excluded in determining “just

compensation.”

Here, the district court examined the 1981 Overlay and determined that it

applied to Appellants’ property and there was no “reasonable possibility” that it

would change in the near future. In the absence of a “reasonable probability” that

the regulation would no longer apply, the Commission did not need to hear any

evidence about the value of Appellants’ property without the regulation. The

district court also determined whether the evidence warranted the application of

the scope of the project rule. The district court found that the Government’s

involvement in the passage of the 1981 Overlay was not within “the scope” of its

decision seven years later to expand Everglades National Park or its decision

nineteen years later to begin condemning properties. Once the district court

35
decided that the rule should not apply, there was no decision for the Commission

to make. Because the Commission did not need to decide whether there was “any

increase or decrease in value due to the project,” there was no need for it to hear

any evidence about the value of land without the regulation or about the

Government’s role, if any, in getting the 1981 Overlay passed. The district court

acted correctly in ruling on Appellants’ objection regarding the zoning restrictions

as a matter of law and in then excluding evidence regarding this objection from the

fact-finding Commission. 

C. Due Process During the Land Commission Proceeding

Appellants contend that the Commission was biased against them because

the Commission was exposed to a “long and steady diet of un-rebutted

government presentations” before the Commission heard the instant contested

matter. (Appellants’ Brief, at 24). Appellants aver that rather than assessing 9

Appellants’ case on its own individual evidence, the Commission followed the

Appellants contend that the Government consolidated very small tracts of land, whose 9

owners were less likely to be represented by counsel, in groups for the earliest Commission trials and

then selectively dismissed parcels from those trial groups upon notice of the appearance of counsel. 

In this way, Appellants argue, the Commission was allowed to hear numerous trials with only a

Government evaluation expert. Appellants contend that the courts delayed their proceeding until

after these trials by failing to rule on their pretrial motions and refusing to set prompt trial dates

despite their repeated protests of prejudice. It ultimately took a court order to secure a trial date. 

Appellants maintain that the court exacerbated the delays in bringing them to trial by reassigning the

trial judge and the magistrate judge.

36
pattern of awards it had developed in prior cases, $500 per acre in uncontested

cases and $700 per acre when the landowner appeared pro se, when it awarded

Appellants $700 per acre for the vast majority of the relevant property. Appellants

maintain that the Commission’s failure to reference their expert’s 1987

comparable and the Commission’s reliance on the Government’s 1986 comparable

illustrates that the Commissioners had closed their minds to new evidence. This

court will address (1) whether the scheduling of Appellants’ trial violated due

process; and (2) whether the Commission’s reaction to the 1987 comparable

indicates that it was not considering Appellants’ case on the basis of its individual

facts. 

The Government and the trial court have a duty to “facilitate justice” and

guard against due process violations in condemnation proceedings involving a

large number of similar land tracts with numerous owners. 320 Acres, 605 F.2d at

770. Because the protection of a jury is not afforded in Rule 71 Land Commission

cases, the courts must be “particularly vigilant to ensure that every precaution is

taken to safeguard the rights of individual landowners.” United States v. 5.00

Acres, 673 F.2d 1244 (11th Cir. 1982). A court may violate constitutional due

process if it chooses an adjudication mechanism designed to preclude landowners

from producing relevant evidence opposing that offered by the Government. See

37
Sapero v. Mayor & City Council of Baltimore, 920 A.2d 1061, 1078 (Md. Ct. App.

2007) (holding a court violated due process when it abused state’s “quick take”

mechanism to take property in absence of real emergency). 

Numerous courts have addressed whether it prejudices a landowner who

wishes to contest the Government’s evaluation of his property, and violates due

process rights to have a land commission hear numerous uncontested cases first or

at the same time as a contested case. In 5.00 Acres, the appellants argued that the

land commission there had become prejudiced by hearing thirty-nine pro se

proceedings in which landowners did not effectively present evidence of land

values. 673 F.2d at 1247. We found that the landowners had shown no actual

bias, much less bias beyond reasonable possibility of disagreement, and stated,

“the recitation of numbers proves nothing. The purpose of a commission is to hear

all cases for an entire project and achieve some uniformity of result.” Id.

In Gwathmey v. United States, we found that landowners had been denied

due process because the Government had consolidated the evaluation of more than

200 tracts of land in one case and did not dismiss the jury to determine the values

of each tract until evidence had been presented with regard to all the tracts,

making it impossible for the jury to assess the value of each tract of land on the

facts addressing that tract. 215 F.2d 148 (5th Cir. 1954). In 75.13 Acres,

38
landowners claimed a due process violation because the same three commissioners

heard all of the condemnation cases involving a particular project. The court

rejected this claim and stated:

The purpose of appointing a commission under Fed. R. Civ. P.

71A(h) is to promote uniformity in compensation by enabling one

group of people to establish valuations for all tracts taken in one

project. . . . [T]he landowners have not shown that the

commissioners were biased against them or failed to consider their

case on the basis of their individual facts.

693 F.2d at 817. Our holdings in Gwathmey and 5.00 Acres and the Eighth

Circuit’s opinion in 75.12 Acres make clear that having a land commission hear

numerous uncontested cases before a contested case is not a per se violation of due

process as long as it appears that the Commission evaluated each case on the basis

of its individualized facts.

Appellants contend that the Commission failed to consider their case on the

basis of their own facts because the Commission’s report relied on the

Government’s 1986 comparable and did not discuss a 1987 comparable which

sold for $1,050 per acre and the Commission awarded Appellants a sum similar to

what it had awarded in prior cases where the landowners were represented and

presented virtually no evidence. The Government contends that given the paucity

of proof of the 1987 sale, there was ample basis for the Commission’s decision not

39
to rely on it, and that the Commission issued a sufficient report to justify its 10

ultimate award. As explained above, the instant case turned on the comparable

sales offered by each side’s expert. The Government’s expert offered Comparable

1, a 1986 sale for $700 per acre, just as he had done in numerous prior trials. The

Commission had relied upon this sale numerous times in prior trials and did so

again in the instant case. Appellants’ expert offered the 1987 comparable for

$1,050 per acre in the same vicinity to specifically rebut the Government expert’s

1986 comparable and to weaken the Government expert’s credibility as an

appraiser. On cross-examination the Government expert admitted that the 1987

transaction would have figured into his opinion had he known about it. 

Appellants’ counsel reemphasized the Government expert’s failure to consider the

1987 transaction in closing argument. In his closing remarks, the Government

attorney admitted the 1987 transaction was relevant. Despite all of the emphasis

The Government points out that Appellants’ own appraiser elected not to use the 1987 sale 10

to determine fair market value and only used it to review and rebut the Government’s appraisal based

in part on the 1986 comparable. The Government’s appraiser stated that he chose not to consider

the 1986 comparable in appraising value because the land records book and page number provided

by the Appellants’ appraiser for the property were not accurate and he could not locate evidence of

the sale. Appellants never entered any documentation of the sale into the record. Appellants respond

that their appraiser did not use the 1987 case because he felt it was too old but used it to respond to

the Government’s appraiser who was using other 1980s cases. Appellants also note that the

Government conceded that the 1987 transaction was a valid transaction at trial and that no

documentation of any sale, 1986 or otherwise, was put into evidence at trial.

40
on the 1987 transaction at trial, the Commission did not even mention it in its

report . 

We have extensively reviewed the record and have read several of the

Commission’s opinions preceding this case along with the Commission’s report

here. We find ample evidence that the Commission considered this case as well as

its prior cases on the basis of their own facts. First, the Commission’s opinions

illustrate that they awarded different per acre values for various pieces of land

within the same proceeding and across proceedings. Compare DE 148 app. 1

(awarding $650 for a 1.25 acre plot and a 1.14 acre plot) with DE 148 app. 8

(awarding $570 for a 1.14 acre plot and $625 for a 1.25 acre plot). Further, there

is also no evidence that the Commission consistently awarded more or less in

uncontested cases than it did in cases where the landowner appeared pro se. See

DE 148 app. 3 (awarding $500 or $520 per acre to three landowners that appeared

pro se and $698 per acre for a piece of land that was uncontested); DE 148 app. 27

(awarding $800 to pro se landowner and between $500 and $1100 per acre to

uncontested land owners); DE 148 app. 21 (awarding $1400 to landowner with

counsel but without expert, $700 per acre to pro se landowner, and between $500

and $1200 per acre in cases where landowner did not contest). Second, the

Commission provided a far more detailed report here than they provided in prior

41
uncontested hearings. Third, the Commission’s ultimate $700 award was higher

than the $500 per acre amount requested by the Government and awarded in

earlier proceedings for similar property. The Commission’s decision not to rely

upon the 1987 comparable, which Appellants presented as rebuttal rather than in

their case an chief, does not alone illustrate that the Commission failed to consider

Appellants’ case on the basis of its own facts nor does the Commission’s decision

not to address the 1987 comparable in its report. 

We addressed the requirements for a land commission report in detail in

United States v. 0.21 Acres of Land, 803 F.2d 620 (11th Cir. 1986). There, we

found that a land commission report is insufficient if it “merely states that the

award constitutes just compensation,” without more or “merely summarizes the

evidence without providing the commission’s analysis.” Id. at 623. 

[T]he report must indicate the valuation technique employed and the

evidence relied on by the commission . . . [as well as] how the

commission resolved significant factual disputes and how the

resolution affected its determination. Furthermore, the commission

may need to explain why it believed certain witnesses and discredited

other evidence if substantial evidence conflicts with its conclusion.

However, the commission need not provide an overly particularized

report . . . . [T]he commission need not make detailed findings such

as judges do who try a case without a jury. Instead they should reveal

the reasoning they use in deciding on a particular award . . . . In

short, the commission need indicate only the basis for its award so

that the district court can determine whether the award is clearly

erroneous.

42
Id. (internal citations and quotations omitted). Here, the Commission report

“indicate[d] the valuation method the Commission employed, the evidence it

found compelling, and the other factors it considered important.” 0.21 Acres, 803

F.2d at 624. While the Commission likely should have explained why it did not

rely upon the informative, if disputed, 1987 comparable, the Commission’s failure

to do so does not support the conclusion that it failed to consider Appellants’ case

on the basis of its individual facts.

III. Conclusion

The Land Commission used an acceptable resolution mechanism to obtain

uniform results across trials and issued a thoughtful and detailed report. 

Appellants have not been denied due process, and the district court did not err in

deciding that the Commission was not biased and in refusing to grant Appellants a

new trial. For these reasons, we AFFIRM.

43